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Fall 15 > Family Law > Flashcards

Family Law Flashcards

1
Q

Are they married under FC 300 – what are the requirements?

A
  1. 2 persons
  2. Capable of consent / competent
  3. Issuance of license
  4. Solemnization
  5. Authenticated
  6. 18+ and unmarried
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2
Q

FC 720 - Spouses contracts towards each other obligations of….

A

mutual respect, fidelity, and support.

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3
Q

The document issued by the county clerk is a marriage license until…

A

it is registered with the county recorder, at which time the license becomes a marriage certificate.

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4
Q

Types of Marriage

A
  1. valid
  2. Void - can NEVER be valid
  3. Voidable - there’s a defect that can be cured
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5
Q

What are ways to end a marriage?

A
  1. divorce/dissolution

2. death

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6
Q

Types of VOID marriage

A
  1. Bigamy

2. Incest

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7
Q

Types of Voidable marriage

A
  1. minor/age
  2. prior marriage (spouse missing)
  3. unsound mind
  4. fraudulently induced
  5. induced by force
  6. incurable incapacity
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8
Q

Alternatives to Marriage: Decision Tree

A 
Is it a valid marriage? No
1. putative spouse?
2. estoppel?
If no formal attempt at marriage: is there K agt?
If no, it's simple cohabitation
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9
Q

Putative Spouse

A

An attempt at marriage that fails. When at least one of the parties has a good faith and reasonable belief (objective and subjective belief) that they are married. Others believed they are married and must have had a marriage ceremony.

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10
Q

In order for a marriage of estoppel to apply there must be:

A

i. Representation or promise
ii. Made with knowledge of the facts
iii. To the party ignorant of the truth
iv. With the intent that the other party act on it
v. When the other party has, in fact, been induced to rely on it

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11
Q

Dissolution of marriage or legal separation of the parties may be based on either of the following grounds:

A
  1. Irreconcilable difference, which have caused the irremediable breakdown of the marriage (determined by the court to be substantial reasons for not continuing the marriage)
  2. Incurable insanity - only upon proof, including competent medical or psychiatric testimony that the insane spouse was at the time petition was filed and remains incurable insane
    a. Insane at time of marriage = annulment
    b. Insane after marriage = divorce
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12
Q

Spousal support exam flow

A 
start with asking what time of order. 
• TO - what keeps 
the marital lifestyle?
• Permanent - balance factors. 
• Modification - person wanting to modify has to show substantial change in circs and 
then also go through the factors.
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13
Q

Spousal support TO

A

The first time spousal support comes in is when the divorce is filed. The temporary
order is designed to bridge the gap between the person with money and person w/o
money; intended to keep the marital lifestyle going.
Dissomaster is the program used to calculate child and spousal support often used for temporary orders. CANNOT BE USED FOR PERMANENT ORDERS.

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14
Q

Award of Attorney’s Fees as Sanction.

A

conduct of each party or attorney frustrates policy to promote settlements/reduce cost by encouraging cooperation.
Only after notice to the party with opportunity to be heard. Payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.
• Cannot make a sanction that puts an unreasonable financial burden on the other side.

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15
Q

Permanent order’s (order of the trial court) always have 3 components:

A
  1. Amount $
  2. Duration
  3. Jdx (how long can the court go back and modify the order. Judges maintain jdx during payment period “or further order of the court”)
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16
Q

Spousal support - modification

A
  • person who wishes to modify an order has the burden of proof to show a material change in circumstance.
  • modification may be temporary or permanent.
  • Must balance all the 4320 factors from scratch
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17
Q

FC 4320: In ordering spousal support, the court shall consider ALL of the following:
first factor

A

extent to which the earning capacity of each party is sufficient to maintain the standard of living est during the marriage, taking into account:

  1. marketable skill of SP; job market for tht skill; time/expense req’d to acquire edu/training to develop those skills; or possible need to acquire a more marketable skill
  2. SPs present or future earning capacity impaired by periods of unemployment that were incurreced to permit SP to devote time to domestic duties
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18
Q

FC 4320: In ordering spousal support, the court shall consider ALL of the following:
factors 2-7

A
  1. SP contributed to attainment of edu/training/career by ex
  2. ability of supporting party to pay spousal support, consider their earning capacity, earned + unearned income, assets, SoL
  3. needs of each party based on SoL est during marriage
  4. obligations + assets, incl separate prop, of each party
  5. duration of marriage
  6. ability of SP to engage in gainful employment w/o unduly interfering w interests of dependent children in their custody
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19
Q

FC 4320: In ordering spousal support, the court shall consider ALL of the following:
factors 8-14

A
  1. age + health of parties
  2. documented history of domestic violence
  3. immediate + specific tax consequences to each (deductible to payer, includible to payee)
  4. balance of hardships to each
  5. goal that SP be self supporting w/in reasonable period of time. except in marriage of long duration = 1/2 length of marriage
  6. crim conviction of abusive spouse
  7. any other factors ct determines are just + equitable
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20
Q

spousal support - jdx

FC 4336

A

except on written agt by parties to the contrary or a ct order terminating support, the ct retains jdx indefinitely in a proceeding for dissolution of marriage of long duration

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21
Q

spousal support - cohabiting with a non-marital partner

FC 4323.

A

except as otherwise agreed in writing: rebuttable presumption of decreased need for spousal support if SP is cohabiting with a nonmarital partner.
• ct needs to determine circs have changed first, then can modify or terminate order

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22
Q

child support - the guideline

A
  1. takes into account parent’s actual income + level of responsibility 4 the kids
  2. interests of children is states top priority
  3. presumptively correct, and only under special circs should child support order fall below that mandated by the guideline
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23
Q

A parent’s first and principal obligation

A

is to support his or her minor children according to the parent’s circumstances and station in life.

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24
Q

Child support order in cases in which both parents have high levels of responsibility for the children

A

should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes.

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25
Q

Children should share in the standard of living of both parents.

A

Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.

26
Q

the duty of child support continues…

A

unmarried child who has attained the age of 18 years, is a full time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.

27
Q

Child Support Deviation FC 4057: Amount established is presumed to be the correct amount.

evidentiary standard

A

Presumption is REBUTTABLE by admission of evidence showing that application of the formula would be unjust or inappropriate in the particular case bc 1 or more of the following factors is found to be applicable by a PREPONDERANCE of the evidence

28
Q

Child Support Deviation FC 4057: factors

A
  1. stipulated to diff amount
  2. parent has extraordinarily high income so formula amount would exceed kids needs (up to judge what is a high earner. 2 prong: what are the kids needs + is their lifestyle like that of paying parent?)
  3. special circs like med needs (factual + up to judge)
29
Q

Types of orders and how they originally get modified:

A
  • Child: will last until kid turns 18 or graduates from HS or further order from court.
  • Spousal: terminates upon death, remarriage or further order of the court (unless otherwise agreed by parties)
30
Q

spousal support - modification.

If retirement is voluntary the court must determine which category, out of 3 it fits under

A
  1. bright line: choose to retire for lifestyle change. theres no compulsion so theres no material change. no modification.
  2. Retire in good faith, ct will consider granting. Bad faith = denied. GF/BF is discretionary by ct
  3. negative impact on payee = no modification.
31
Q

You can enforce any type of order through contempt. This say in order to enforce an order there is a four step process:

A
  1. Valid order from the court
  2. D had knowledge of the order
  3. D had ability to comply w order
  4. D willfully disobeyed order
32
Q

Child Support - Modification

If its unclear which stage you are at in your timeline you need to talk about all three:

A
  1. TO: standard is BIC. Mover has the burden.
  2. At trial: BIC with both parents having the burden.
  3. Post judgment: First, material change in circ; then BIC. Mover has burden.
33
Q

Legal Custody: Joint vs. Sole

A
  • joint - both parents share right + responsibility to make decisions relating to health, edu, welfare of child
  • sole - parent will make all decisions re health, edu, welfare
34
Q

Physical Custody: Joint

A

• joint - each parent shall have significant periods of phys custody. assures child frequent + continuing contact w both parents.
* be VERY specific by alloting times/date/% for each parent

35
Q

In making a determination of the best interest of the child the court shall, among any other factors it finds relevant, consider all of the following:

(broadly defined & designed to have a lot of judicial discretion)

A
  1. health, safety, welfare
  2. history of abuse by a parent or any other person seeking custody
  3. nature + amount of contact with both parents
    habitual or continual illegal use of drugs, alchohol or prescribed controlled substances
36
Q

Child custody - upon finding by court that a party seeking custody has perpetrated domestic violence against the other person seeking custody…

A

rebuttable presumption that an aware of sole or joint phys custody, is detrimental to BIC.
May be rebutted by a preponderance of the evidence.

37
Q

Before granting custody to a non-parent, over objections of parent, court must find:

A

granting custody to a parent would be detrimental to the child and that granting custody to the non-parent is required to serve the best interest of the child.

38
Q

If grandparent’s petition, court may grant reasonable visitation rights to the grandparent if the court does of the following:

A
  1. Finds theres a pre-existing relationship btwn grandparent + child so visitation is in the BIOC, and
  2. Balance the interest of the child in having visitation w grandparent againstright of the parent to exercise their parental authority
39
Q

Custody should be granted in the following order of preference according to the best interest of the child:

A

both parents jointly or to either parent.
court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent

40
Q

Child Custody: Move Away Post Trial

A
  • noncustodial parent (or moving parents if joint) has a substantial burden to prove change indicates a modification would be in BIC
  • if NCP makes initial showing of detriment, ct must determine whether change in custody is in BIC (la musga factors)
41
Q

NCP’s burden to show detriment

A

In move-away cases, a change is not justified by a good faith move itself; it must be established that the move will cause the child to suffer such detriment that it is “essential or expedient” for the child’s welfare that there be a change of custody
• if cant show detriment, no need to do BIC test after. stops there.

42
Q

LaMusga Factors

A
  1. kids interest in stability + continuity in custodial arrangement
  2. distance of the move
  3. age of kid
  4. The child’s relationship with both parents
  5. relationship between the parents, incl communication, cooperation + willingness to put interest of kid above individual interests
  6. Wish of the kid if they’re mature enough for such an inquiry to be appropriate
  7. reason for proposed move
  8. extent to which the parents currently are sharing custody
43
Q

Pre Marital Agts - Parties may contract w respect to all of the following

A
  1. property
  2. making of will/etc. to carry out provisions of agt
  3. ownership rights in + disposition of benefit from life insurance policy
  4. choice of law
  5. anything else not in violation of public policy (cannot do child support + no spousal support if ppl not represented)
44
Q

A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

A
  1. agt not voluntary (bonds factors)
  2. agt unconscionable when executed + before execution there was not full disclosure + party didnt voluntarily waive, in writing, a right to disclosure of the prop or fin obligation of the other party beyond the disclosure provided
  3. executed under undue influence, undue duress, or fraud
  4. any other factors ct finds relevant
45
Q

pre-marital dates (1615 vs bonds analysis)

A
  • pre 1/1/02 - bonds analysis / contractual voluntary

* post - 1615 (bonds +)

46
Q

PMA bonds approach

A 
pre 1/1/02. PMA valid until proving party (has burden) shows it invalid. PMS must be in writing.
Factors in determining voluntariness of joining:
1. inequality of bargaining power
2. coercion
3. full disclosure of access
4. understanding rights
5. access to counsel
6. notice
7. access to info (language)
47
Q

donor or semen provided to a licensed physical or sperm bank for use in assisted reproduction

A

of a woman other than the donor’s spouse is treated in law as if he were not the natural parents of a child thereby conceived, unless otherwise agreed to it in a writing signed by the donor and the woman prior to the conception of the child.

48
Q

Parentage: who are the parents? factors

A
  1. Who had the intent to have the child
  2. Who had access to the child 3. Who held out as the child’s parent
  3. Who is going to pay for the child
  4. Is there a third potential parent
49
Q

§7611: A man is presumed to be the natural father of a child if:

A

He received the child into his home and openly holds out the child as his natural child

50
Q

The child of a wife cohabiting with her husband, who is not impotent or sterile…

A

is conclusively presumed to be a child of the marriage.

EXCEPT: Husband, wife (if bio-dad acknowledges under oath), child, or presumed father bring motion within 2 years of DOB

51
Q

Paternity presumptions - §7612: If two or more presumption arises that conflict with each other,

A

the presumption, which on the fact is found on the weightier considerations of policy and logic controls.

52
Q

three parents

A

In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.

53
Q

Parentage by Estoppel

A

If you make a representation that was intended to be relied on (if you represented and acted like the father), that wasn’t true but was relied on, therefore you are a parent by estoppel and you owe child support.

54
Q

Restraining Orders - exclude from family dwelling

A

The court has discretion to exclude a party from the family dwelling for a period of time and on the condition the court determines regardless of who holds title to the home

55
Q

Criminal Protective Orders- no mutual orders

A
  • only against the crim D, Only good during crim proceeding
  • grounds: upon good cause belief tht harm to, or intimidation or dissuasion of a victim or witness has occurred or is likely to (req’d 5 day notice to prosecutor for modifying or terminating a crim protective order)
56
Q

Emergency Protective Orders

A
  • may be issued by judge upon request by law enforcement on finding that there are reasonable grounds to believe theres immediate + present danger of abuse, abduction, or stalking
  • 5 ct days or 7 calendar days from issuance
57
Q

Grounds for protective order

A

RECENT incident of abuse, threat of abuse, stalking, sexual assault, harassment in person, by written or telephonic or other medium communication, destruction of personal property or other behavior

58
Q

Standard of Proof - Temp Restraining Order

A
  • reasonable proof
  • person asking has burden
  • perm order requires preponderance
59
Q

Domestic violence order at child custody:

A

when custody is brought in the courts start right in the middle of mom and dad and depending on the facts presented the dot moves. However, if there is evidence of domestic violence and a permanent restraining order, this moves that presumption (the dot) all the way to the non-offending spouse. You start with the idea that the non-offending spouse should have custody.

60
Q

Factors determining reasonable fees

A
  1. Nature of case
  2. Complexity of case
  3. Amount of work involved
  4. Resources available
  5. Nature of the issues and burden of discovery
  6. Skills required/time consumed
  7. Court’s own knowledge and experience – (§4320 factors)
  8. Client control – your obligation to control your client by not running up the other side’s fees, etc.

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